Exhibit 1.1
UNDERWRITING AGREEMENT
US$[985,000,000]
Perpetual Trustee Company Limited
SERIES 2000 -- 1G MEDALLION TRUST
% Mortgage Backed Floating Rate Notes Due 2030, Class A-1
UNDERWRITING AGREEMENT
----------------------
March [24], 2000
X.X. Xxxxxx Securities Inc.
("X.X. Xxxxxx")
As Representative of the
Several Underwriters Listed
in Schedule I
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Perpetual Trustee Company Limited, ACN 000 001 007, a company incorporated
in New South Wales, Australia ("Perpetual"), acting in its capacity as trustee
of the Series 2000-1G Medallion Trust (the "Trust", and Perpetual in that
capacity being the "Issuer Trustee"), acting at the direction of Securitisation
Advisory Services Pty Limited, ACN 064 133 946, a company incorporated in New
South Wales, Australia, as manager of the Trust (the "Manager"), proposes to
sell to the several Underwriters listed in Schedule I to this Agreement (the
"Underwriters"), for whom X.X. Xxxxxx is acting as representative (the
"Representative"), US$[985,000,000] aggregate principal amount of Class A-1
Mortgage Backed Floating Rate Notes due 2030 (the "Class A-1 Notes") issued by
the Issuer Trustee. The Manager is a wholly-owned subsid-
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iary of Commonwealth Bank of Australia, ACN 123 123 124, a company incorporated
in the Australian Capital Territory, Australia ("CBA").
The Class A-1 Notes will be secured by the assets of the Trust in
accordance with the Security Trust Deed. The assets of the Trust means all
assets and property, real and personal, (including choses in action and other
rights), tangible and intangible, present or future, held by the Issuer Trustee
from time to time, as trustee of the Trust including, among other things: (i)
rights specified in the Security Trust Deed and the Note Trust Deed in a pool of
variable and fixed rate residential mortgage loans (the "Mortgage Loans") (such
rights, the "Mortgage Loan Rights" (as defined on the next page)) and certain
moneys received under the Mortgage Loans after March [18], 2000 (the "Cutoff
Date"), (ii) the benefits of all covenants, agreements, undertakings,
representations, warranties and other choses in action in favor of the Issuer
Trustee under the Transaction Documents (as defined in the Series Supplement),
(iii) the Collection Account and (iv) all other assets that comprise the Charged
Property (as defined in the Security Trust Deed). The Mortgage Loans will be
sold to the Issuer Trustee by CBA (in such capacity, the "Seller") and will be
serviced for the Issuer Trustee by CBA (in such capacity, the "Servicer"). The
Class A-1 Notes will be issued in an aggregate principal amount of
US$[985,000,000], which is equal to approximately ___% of the aggregate balance
of the Mortgage Loans as of the Cutoff Date.
The Trust was created pursuant to a master trust deed dated October 8,
1997, as amended from time to time (the "Master Trust Deed") between the Manager
and Perpetual and a series supplement to be dated March [ ], 2000 (the "Series
Supplement"), between CBA (as Seller and Servicer), the Manager and the Issuer
Trustee, which describes, among other things, the Trust and the underlying cash
flow relating to the Class A-1 Notes. The Class A-1 Notes will be issued
pursuant to a Note Trust Deed to be dated March [27], 2000 among the Issuer
Trustee, the Manager and The Bank of New York, New York branch (the "Class A-1
Note Trustee").
Concurrently with the sale of the Class A-1 Notes, the Issuer Trustee will
also issue A$[150,000,000] in aggregate principal amount of Class A-2 Notes
(together with the Class A-1 Notes, the "Class A Notes"), and A$[15,000,000] in
aggregate principal amount of Class B Notes". The Class A-2 Notes will be equal
to ___% of the aggregate principal amount of Mortgage Loans as of the Cutoff
Date, and the Class B Notes will be equal to % of the aggregate principal amount
of the Mortgage Loans as of the Cutoff Date. The assets of the Trust will also
secure under the Security Trust Deed, among other things, any Redraw Bonds (as
defined in the
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Series Supplement) that may be issued after the date of this Agreement and the
Issuer Trustee's obligations under the Liquidity Facility. The Class A-2 Notes,
the Class B Notes and the Redraw Bonds are collectively referred to as the "A$
Securities." The Class A-1 Notes and the A$ Securities are collectively referred
to as the "Notes."
The Manager has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Class A-1 Notes. The
registration statement as amended at the time when it shall become effective,
or, if a post-effective amendment is filed with respect thereto, as amended by
such post-effective amendment at the time of its effectiveness, including in
each case information (if any) deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430 or Rule 430A under the
Securities Act, is referred to in this Agreement as the "Registration
Statement", and the prospectus in the form first used to confirm sales of Class
A-1 Notes is referred to in this Agreement as the "Prospectus".
When used in this Agreement, "Basic Documents" shall mean collectively: the
Master Trust Deed (in so far as it applies to the Trust), the Series Supplement,
the Notes, the Security Trust Deed, the Note Trust Deed, the Agency Agreement,
the Dealer Agreement, the Liquidity Facility Agreement, the Standby Redraw
Facility Agreement, the Currency Swap Agreement, the Interest Rate Swap
Agreement, the Mortgage Insurance Policies, any other document which is agreed
to by the Manager and the Issuer Trustee to be a Transaction Document in
relation to the Trust under clause 1.6(a)(v) of the Series Supplement, the DTC
Letter of Representations, any undertakings given to Euroclear or Clearstream
Banking, societe anonyme ("Clearstream") in connection with the Book Entry
Notes, any agreement, instrument or undertaking entered into by the Issuer
Trustee or any CBA Party in connection with the listing of the Class A-1 Notes
on the London Stock Exchange, and [any other contract, agreement or instrument
which is specified in the closing memo]. CBA and the Manager are each a "CBA
Party" and collectively are referred to as the "CBA Parties." To the extent not
defined herein, capitalized terms used herein have the meanings assigned to such
terms in the Series Supplement.
In this Agreement, a reference to the Issuer Trustee is a reference to the
Issuer Trustee in its capacity as trustee of the Trust only, and in no other
capacity and reference to the assets, business, property or undertaking of the
Issuer Trustee, unless otherwise stated, is a reference to the Issuer Trustee in
that capacity only.
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Each of the CBA Parties and the Issuer Trustee hereby agrees with the
Underwriters as follows:
1. Purchase and Sale. The Issuer Trustee, at the direction of the Manager,
agrees to sell, and the Manager agrees to direct the Issuer Trustee to sell, the
Class A-1 Notes to the several Underwriters as hereinafter provided, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Issuer Trustee, the respective principal
amounts of Class A-1 Notes set forth opposite such Underwriter's name in
Schedule I hereto at a price equal to ______% of their principal amount.
2. Offering. The CBA Parties and the Issuer Trustee understand that the
Underwriters intend to make a public offering of their respective portions of
the Class A-1 Notes upon the terms set forth in the Prospectus as soon after (A)
the Registration Statement has become effective and (B) the parties hereto have
executed and delivered this Agreement, as in the judgment of X.X. Xxxxxx is
advisable.
3. Delivery and Payment. Payment for the Class A-1 Notes shall be made by
wire transfer in immediately available funds to the account specified by the
Issuer Trustee to X.X. Xxxxxx no later than 12:00 noon, New York City time on
, 2000, or at such other time on the same or such other date, not later than
the fifth Business Day thereafter, as X.X. Xxxxxx and the Manager may agree upon
in writing. The time and date of such payment are referred to herein as the
"Closing Date". As used herein, the term "Business Day" means any day other than
a day on which banks are permitted or required to be closed in New York City,
Sydney and London.
Payment for the Class A-1 Notes shall be made against delivery to the
nominee of the Depository Trust Company for the account of X.X. Xxxxxx and for
the respective accounts of the several Underwriters of [three] or more fully
registered global book-entry notes (the "Book-Entry Notes") representing
$[985,000,000] in aggregate Principal Amount of Class A-1 Notes, with any
transfer taxes payable in connection with the transfer to the Underwriters of
the Class A-1 Notes duly paid by the Issuer Trustee. The Book-Entry Notes will
be made available for inspection by X.X. Xxxxxx at the offices of Xxxxx, Xxxxx &
Xxxxx at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 not later than 1:00 P.M., New
York City time, on the Business Day prior to the Closing Date. Interests in any
Book Entry Notes will be held only in Book Entry form through DTC, except in
limited circumstances described in the Prospectus.
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4. Representations and Warranties of the Issuer Trustee and the CBA
Parties.
I. The Issuer Trustee represents and warrants to each Underwriter and the
CBA Parties as of the date of this Agreement and as of the Closing Date, and
agrees with each Underwriter and the CBA Parties, that:
(a) since the respective dates as of which information is
provided in the Registration Statement and the Prospectus, there has not been
any material adverse change or any development involving a prospective material
adverse change in or affecting the general affairs, business, prospects,
management, or results of operations, condition (financial or otherwise) of
Perpetual or the Trust except as disclosed in the Prospectus which is material
in the context of performing the Issuer Trustee's obligations and duties under
the Notes and each Basic Document to which it is or is to be party;
(b) Perpetual has been duly incorporated and is validly
existing as a corporation under the laws of New South Wales, with power and
authority (corporate and other) to conduct its business as described in the
Prospectus, and to enter into and perform the Issuer Trustee's obligations under
this Agreement and the Basic Documents and Perpetual been duly qualified for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the transactions
contemplated herein or in the Basic Documents;
(c) Perpetual has duly authorized, executed and delivered this
Agreement;
(d) the Notes have been duly authorized by Perpetual, and,
when the Class A-1 Notes have been issued (and duly authenticated by the Class
A-1 Note Trustee), delivered and paid for pursuant to this Agreement, they will
constitute valid and binding obligations of the Issuer Trustee entitled to the
benefits of the Note Trust Deed and the Security Trust Deed, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws affecting the
enforcement of creditors rights generally and to general equitable principles.
(e) the execution, delivery and performance by Perpetual of
each of the Basic Documents to which it either is, or is to be, a party and this
Agreement
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has been duly authorized by Perpetual and, when executed and delivered by it and
the other parties thereto, each of the Basic Documents will constitute a legal,
valid and binding obligation of the Issuer Trustee, enforceable against it in
accordance with its terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of creditors rights
generally and to general equitable principles;
(f) Perpetual is not, nor with the giving of notice or lapse
of time or both will be, in violation of or in default under: (i) its
constitution or (ii) any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which either is a party or by which it or any
of its properties is bound, except in the case of (ii), for violations and
defaults which individually and in the aggregate would not have a material
adverse effect on the transactions contemplated in or in the Basic Documents;
the issue and sale of the Notes and the performance by it of all of the
provisions of the Issuer Trustee's obligations under the Notes, the Basic
Documents and this Agreement and the consummation of the transactions herein and
therein contemplated will not (I) conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of it's property or
assets is subject, (II) result in any violation of the provisions of it's
constitution or any applicable law or statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over it, or any
of its properties; or (III) result in the creation or imposition of any lien or
encumbrance upon any of its property pursuant to the terms of any indenture,
mortgage, contract or other instrument other than pursuant to the Basic
Documents; and no consent, approval, authorization, order, license, registration
or qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Notes or the consummation by the Issuer
Trustee of the transactions contemplated by this Agreement or the Basic
Documents, except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the Securities Act
and the Trust Indenture Act of 1939, as amended, and the rules and regulations
of the Commission thereunder (the latter, including such applicable rules and
regulations, the "Trust Indenture Act") and as may be required under state
securities or "Blue Sky" Laws in connection with the purchase and distribution
of the Class A-1 Notes by the Underwriters;
(g) other than as set forth in or contemplated by the
Prospectus, there are no legal or governmental investigations, actions, suits or
proceedings
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pending or, to its knowledge, threatened against or affecting it or the Trust or
to which it is or may be a party or to which it is or may be the subject: (i)
asserting the invalidity of this Agreement or of any of the Basic Documents,
(ii) seeking to prevent the issuance of the Notes or the consummation of any of
the transactions contemplated by this Agreement or any of the Basic Documents by
the Issuer Trustee, (iii) that may adversely affect the US Federal or Australian
Federal or state income, excise, franchise or similar tax attributes of the
Class A-1 Notes, (iv) that could materially and adversely affect the Issuer
Trustee's performance of its obligations under, or the validity or
enforceability against the Issuer Trustee of, this Agreement or any of the Basic
Documents or (v) which could individually or in the aggregate reasonably be
expected to have a material adverse effect on the interests of the holders of
any of the Class A-1 Notes; and there are no contracts or other documents to
which it is party or bound that are required to be filed as an exhibit to the
Registration Statement or laws, contracts or other documents required to be
described in the Registration Statement or the Prospectus which are not filed or
described as required;
(h) the representations and warranties of the Issuer Trustee
contained in the Basic Documents are true and correct in all material respects;
(i) it has not done or omitted to do anything that might
reduce, limit or otherwise adversely affect the right of the Issuer Trustee to
be indemnified from the assets of the Trust under Clause 16 of the Master Trust
Deed;
(j) the Prospectus complies with the Listing Rules of the
London Stock Exchange Limited (the "London Stock Exchange"), and any preliminary
prospectus and the Prospectus (in the case of the Prospectus), as of the date of
this Agreement and in the case of any preliminary prospectus, as of its date)
(i) contains all the information required by section 146 of the Financial
Services Xxx 0000 (the "Financial Services Act"); and (ii) in the context of
offers and sales of the Class A-1 Notes to any person (A) who is outside the
"United States" (as defined in Regulation S under the Securities Act) or (B) who
is not a "U.S. person" (as defined in Regula tion S under the Securities Act),
is accurate in all material respects and does not contain any untrue statement
of a material fact or omit to state any material fact necessary to make the
information therein, in the light of the circumstances under which it is given,
not misleading and all reasonable inquiries have been made by or on behalf of
the Issuer Trustee to ascertain the accuracy of all such information;
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(k) Perpetual has not taken any corporate action and (to the
best of its knowledge and belief having made reasonable inquiry and
investigation) no other step have been taken or legal proceedings been started
or threatened against it for its winding-up, dissolution or reorganization or
for the appointment of a receiver, receiver and manager, administrator,
provisional liquidator or similar officer of it or of any or all its assets;
(l) no stamp or other duty is assessable or payable in, and
subject only to compliance with Section 128F of the Income Tax Assessment Act
1936 (the "Australian Tax Act") in relation to interest payments under the Class
A-1 Notes, no withholding or deduction for any taxes, duties, assessments or
governmental charges of whatever nature will be imposed or made for or on
account of any income, registration transfer or turnover taxes, customs or other
duties or taxes of any kind, levied, collected, withheld or assessed by or
within, the Commonwealth of Australia or any sub-division of or authority
therein or thereof having power to tax in such jurisdiction, in connection with
(i) the authorization, execution or delivery or any of the Basic Documents to
which it is or is to be a party or with the authorization, execution, issue,
sale or delivery of the Class A-1 Notes under this Agreement, (ii) the sale and
delivery of the Class A-1 Notes by the Underwriters contemplated in this
Agreement and the Prospectus or (iii) the execution, delivery or performance by
the Issuer Trustee of any of the Basic Documents to which it is or is to be a
party or the Class A-1 Notes; except, in the case of sub clause (iii), for any
of the Basic Documents on which nominal stamp duty is payable or any other
document executed in connection with the perfection of the Issuer's Trustee's
legal title to the Mortgage Loans on which stamp duties or registration fees may
be payable;
(m) the Class A-1 Notes and the obligations of the Issuer
Trustee under the Note Trust Deed will be secured (pursuant to the Security
Trust Deed) by a first floating charge over the assets of the Trust, subject to
the Prior Interest (as defined in the Security Trust Deed); and
(n) no event has occurred or circumstances arisen which, had
the Notes already been issued, would (whether or not with the giving of notice
or direction and/or the passage of time and/or fulfillment of any other
requirement) oblige it to retire as Issuer Trustee or constitute grounds for its
removal as Issuer Trustee under any Basic Document or constitute an Event of
Default (as defined in the Security Trust Deed).
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II. Each CBA Party severally represents and warrants to each
Underwriter and the Issuer Trustee as of the date of this Agreement and as of
the Closing Date that:
(a) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been any
material adverse change, or any development involving a prospective material
adverse change, in or affecting (x) the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the CBA Parties taken as a whole or (y) the general affairs, business,
prospects, condition (financial or otherwise) of the Trust otherwise than as set
forth or contemplated in the Prospectus;
(b) it has been duly incorporated and is validly existing as a
corporation under the laws of (in the case of CBA) the Australian Capital
Territory and (in the case of the Manager) New South Wales, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus and to enter into and perform its obligations
under this Agreement and the Basic Documents, and, in each case, has been duly
qualified or licensed for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, other than where
the failure to be so qualified or in good standing would not have a material
adverse effect on the transactions contemplated in this Agreement or in the
Basic Documents;
(c) this Agreement has been duly authorized, executed and
delivered by it;
(d) each of the Basic Documents to which it is or is to be a
party has been duly authorized by it and, upon effectiveness of the Registration
Statement, the Note Trust Deed will have been duly qualified under the Trust
Indenture Act and each of the Basic Documents, when executed and delivered by
each CBA Party that is a party to it and the other parties thereto, will
constitute a legal, valid and binding obligation of it, enforceable against it
in accordance with its terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of creditors rights
generally and to general equitable principles; and, in the case of the Manager
only, the Class A-1 Notes and the Basic Documents each will conform to the
descriptions thereof in the Prospectus;
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(e) it is not, nor with the giving of notice or lapse of time
or both would it be, in violation of or in default under, its constitution or
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it or any of its properties is
bound, except for violations and defaults which individually and in the
aggregate would not have a material adverse effect on the transactions
contemplated in this Agreement or in the Basic Documents; the issue and sale of
the Notes and the performance by it of all or any obligations it has under the
Notes, the Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not (i) conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to which any of
its property or assets of any it is subject, (ii) result in any violation of the
provisions of the constitution of a CBA Party or any applicable law or statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over a CBA Party, or any of its properties or (iii) result
in the creation or imposition of any lien, charge or encumbrance upon any of its
property pursuant to the terms of any such indenture, mortgage, contract, or
other instrument other than pursuant to the Basic Documents; and no consent,
approval, authorization, order, license, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
sale of the Class A-1 Notes or the consummation by it of the transactions
contemplated by this Agreement or the Basic Documents, except such consents,
approvals, authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act, the Trust Indenture Act and as may
be required under state securities or Blue Sky Laws of the United States in
connection with the purchase and distribution of the Class A-1 Notes by the
Underwriters and the registration of the Charge with the ASIC on the Closing
Date;
(f) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or proceedings
pending or, to its knowledge, threatened against or affecting it or its
properties, the Trust or the Trust's properties or, to which it or the Trust is
or may be a party or to which it, the Trust or any property of it or the Trust
is or may be the subject, (i) asserting the invalidity of this Agreement or of
any of the Basic Documents, (ii) seeking to prevent the issuance of the Notes or
the consummation of any of the transactions contemplated by this Agreement or
any of the Basic Documents, (iii) that may adversely affect the U.S. federal or
Australian federal or state income, excise, franchise, stamp duty or similar tax
attributes of the Class A-1 Notes, (iv) that could materially and adversely
affect its performance of its obligations under, or the
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validity or enforceability of, this Agreement or any of the Basic Documents or
(v) which could individually or in the aggregate reasonably be expected to have
a material adverse effect on the interests of the holders of the Class A-1 Notes
or the marketability of the Class A-1 Notes; and there are no statutes,
regulations, contracts or other documents that are required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or described as
required;
(g) its representations and warranties contained in the Basic
Documents are true and correct in all material respects;
(h) it owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other authorizations from, and has
made all declarations and filings with, all Australian and United States
federal, state, local and other governmental authorities (including United
States regulatory agencies), all self-regulatory organizations and all courts
and other tribunals, domestic or foreign, necessary to perform its obligations
under this Agreement and the Basic Documents, and it has not received any actual
notice of any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other authorization;
and it is in compliance with all laws and regulations necessary for the
performance of its obligations under this Agreement and the Basic Documents;
(i) the Prospectus complies with the Listing Rules of the
London Stock Exchange, and any preliminary prospectus and the Prospectus (in the
case of the Prospectus), as of the date hereof and in the case of any
preliminary prospectus, as of its date) (i) contains all the information
required by section 146 of the Financial Services Act; and (ii) in the context
of offers and sales of the Class A-1 Notes to any person (A) who is outside the
"United States" (as defined in Regulation S under the Securities Act) or (B) who
is not a "U.S. person" (as defined in Regulation S under the Securities Act), is
accurate in all material respects and does not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
information therein, in the light of the circumstances under which it is given,
not misleading and all reasonable inquiries have been made to by the CBA Parties
ascertain the accuracy of all such information;
(j) it has not taken any corporate action and (to the best of
its knowledge and belief having made reasonable inquiry and investigation) no
other steps been taken or legal proceedings been started or threatened against
it for its winding-up, dissolution or reorganization or for the appointment of a
receiver,
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receiver and manager, administrator, provisional liquidator or similar officer
of it or of any or all of its assets (other than enforcement action taken by CBA
over its assets);
(k) no stamp or other duty is assessable or payable in, and
subject only to compliance with Section 128F of the Australian Tax Act in
relation to payments under the Class A-1 Notes, no withholding or deduction for
any taxes, duties, assessments or governmental charges of whatever nature is
imposed or made for or on account of any income, registration, transfer or
turnover taxes, customs or other duties or taxes of any kind, levied, collected,
withheld or assessed by or within, the Commonwealth of Australia or any
sub-divisions of or authority therein or thereof having power to tax in such
jurisdiction, in connection with (i) the authorization, execution or delivery
of the Basic Documents to which it is, or is to be, a party or with the
authorization, execution, issue, sale or delivery of the Class A-1 Notes and
(ii) the execution, delivery or performance by each CBA Party of the Basic
Documents to which it is or is to be a party or the Class A-1 Notes; except, in
the case of sub clause (ii), for any of the Basic Documents on which nominal
stamp duty is payable or any other document executed in connection with the
perfection of the Issuer's Trustee's legal title to the Mortgage Loans on which
stamp duties or registration fees may be payable;
(l) no event has occurred or circumstances arisen which had
the Notes already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other requirement)
constitute a Manager Default (as defined in the Master Trust Deed) or a Servicer
Default (as defined in the Series Supplement); and
(m) with respect to the A$ Securities: (A) none of the CBA
Parties, any "affiliate" (as defined in Rule 144(a)(1), each an "Affiliate") of
a CBA Party or any person acting on behalf of a CBA Party or an Affiliate of a
CBA Party has engaged or will engage in any "directed selling efforts" (within
the meaning of Regulation S), (B) each of the CBA Parties, each Affiliate of a
CBA Party and any person acting on behalf of a CBA Party or an Affiliate of a
CBA Party has offered and sold, and will offer and sell, the A$ Securities only
in "offshore transactions" (within the meaning of Regulation S) in compliance
with Regulation S and (C) each of the CBA Parties, each Affiliate of a CBA Party
and any person acting on behalf of a CBA Party or an Affiliate of a CBA Party
has complied and will comply with the offering restrictions requirement of
Regulation S.
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III The Manager represents and warrants to each Underwriter and the
Issuer Trustee as of the date of this Agreement and as of the Closing Date,
that:
(a) no order preventing or suspending the use of any
preliminary prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with the
Securities Act, and did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to a CBA Party in writing
by such Underwriter through X.X. Xxxxxx expressly for use therein;
(b) the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted or, to the knowledge of the Manager,
threatened by the Commission; and the Registration Statement and Prospectus (as
amended or supplemented if the Manager shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may be, in all material
respects with the Securities Act and the Trust Indenture Act and do not and will
not, as of the applicable effective date of the Registration Statement and any
amendment thereto and as of the date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus, as amended or
supplemented, if applicable, at the Closing Date will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; except that the foregoing representations and warranties
shall not apply to (i) that part of the Registration Statement which constitutes
the Statement of Eligibility and Qualification (Form T-1) of the Trustee under
the Trust Indenture Act, and (ii) statements or omissions in the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to any CBA Party in writing by
such Underwriter through X.X. Xxxxxx expressly for use therein;
-13-
(c) Ernst & Young LLP are independent public accountants with
respect to CBA and the Manager within the meaning of the Securities Act;
(d) to the knowledge of the Manager, no event has occurred
that would entitle the Manager to direct the Issuer Trustee to retire as trustee
of the Trust under clause 19.2 of the Master Trust Deed;
(e) the Trust is not and (i) upon the issuance and sale of the
Notes as contemplated in this Agreement, (ii) the application of the net
proceeds therefrom as described in the Prospectus, (iii) the performance by the
parties to the Basic Documents of their respective obligations under the Basic
Documents, and (iv) the consummation of the transactions contemplated by the
Basic Documents, the Trust will not be required to be registered as an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended; and
(f) application has been made to the London Stock Exchange for
the Class A-1 Notes to be admitted to the Official List and all relevant
requirements of the Listing Rules will have been complied with.
5. Covenants and Agreements.
I. The Issuer Trustee covenants and agrees with each of the several
Underwriters and each of the CBA Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee
from the sale of the Class A-1 Notes pursuant to this Agreement in the manner
specified in the Prospectus under the caption "Use of Proceeds";
(b) to notify the Representative and the CBA Parties promptly
after it becomes actually aware of any matter which would make any of its
representations and warranties in this Agreement untrue if given at any time
prior to payment being made to the Issuer Trustee on the Closing Date and take
such steps as may be reasonably requested by the Representative to remedy the
same;
(c) to pay any stamp duty or other issue, transaction, value
added, goods and services or similar tax, fee or duty (including court fees) in
relation to the execution of, or any transaction carried out pursuant to, the
Agreements or in connection with the issue and distribution of the Class A-1
Notes or the enforcement or delivery of this Agreement;
-14-
(d) to use all reasonable endeavors to procure satisfaction on
or before the Closing Date of the conditions referred to in Section 6 below
which relate to the Issuer Trustee and, in particular (i) the Issuer Trustee
shall execute those of the Basic Documents not executed on the date hereof on or
before the Closing Date, and (ii) the Issuer Trustee will assist the
Representative to make arrangements with DTC, Euroclear and Clearstream
concerning the issue of the Class A-1 Notes and related matters;
(e) to provide reasonable assistance to the CBA Parties to
procure that the charges created by or contained in the Security Trust Deed are
registered within all applicable time limits in all appropriate registers;
(f) to perform all of its obligations under each of the Basic
Documents to which it is a party which are required to be performed prior to or
simultaneously with closing on the Closing Date;
(g) not to take, or cause to be taken, any action or knowingly
permit any action to be taken which it knows or has reason to believe would
result in the Class A-1 Notes not being assigned the ratings referred to in
Section 6(q) below;
(h) not, prior to or on the Closing Date, amend the terms of
any Basic Document nor execute any of the Basic Documents other than in the
agreed form without the consent of the Underwriters;
(i) it will:
(i) sign and deliver to the London Stock Exchange a
listing application and copies of the Prospectus on or prior
to the Closing Date;
(ii) ensure that the Prospectus shall be approved as
listing particulars by or on behalf of the London Stock
Exchange as required by Section 144(2) of the Financial
Services Act and the Listing Rules; and
(iii) ensure that two copies of the Prospectus shall
be delivered to the Registrar of Companies in England and
Wales for
-15-
registration as required by Section 149 of the Financial
Services Act, on or before the date of publication thereof;
(j) to procure that if, after the Prospectus has been
published and following the admission of the Class A-1 Notes to the Official
List of the London Stock Exchange:
(i) there is a significant change affecting any
matter contained in the Prospectus the inclusion of which was
required by Section 146 of the Financial Services Act or by
the Listing Rules or by the London Stock Exchange; or
(ii) a significant new matter arises the inclusion of
information in respect of which would have been so required
if it had arisen when the Prospectus was prepared,
to notify the Representative on behalf of the Underwriters as soon as reasonably
practicable and, in accordance with the Listing Rules, to submit to the London
Stock Exchange for its approval and, if approved, publish a supplement to the
Offering Circular of the change or new matter;
(k) for the purposes of section 128F(3)(c) of the Australian
Tax Act, it will, before it issues any Class A-1 Note, seek a listing of the
Class A-1 Notes on the London Stock Exchange, and use its best efforts to
maintain such listing for as long as any of the Class A-1 Notes are outstanding;
provided, however, if such listing becomes impossible, to use their best efforts
to obtain, and will thereafter use its best efforts to maintain a quotation for,
or listing of, the Class A-1 Notes on such other exchange as is commonly used
for the quotation or listing of debt securities as they may, with the approval
of X.X. Xxxxxx, decide; and
(l) in connection with the initial distribution of the Class
A-2 Notes and the Class B Notes, it and each person acting on its behalf (other
than the CBA Parties, each Affiliate of a CBA Party and the Managers (as defined
in the Dealer Agreement):
(i) before the commencement of Schedule 1 of the
Corporations Law Economic Reform Program Xxx 0000:
-16-
(A) has not (directly or indirectly) offered
for subscription or purchase issued invitations to
subscribe for or buy nor has it sold any Class A-2
Notes or any Class B Notes;
(B) will not (directly or indirectly) offer
for subscription or purchase or issue invitations to
subscribe for or buy nor will it sell any Class A-2
Notes or any Class B Notes; and
(C) has not distributed and will not
distribute any draft, preliminary or definitive
prospectus, offering memorandum, advertisement or
other offering material relating to the Class A-2
Notes or any Class B Notes,
in the Commonwealth of Australia, its territories or
possessions, unless, the consideration payable by each person
to whom an offer or sale is made or to whom an invitation is
issued is a minimum amount of A$500,000 or the offer or
invitation is otherwise an excluded offer or excluded
invitation for the purposes of the Corporations Law (within
the meaning of the Corporations Xxx 0000 of Australia) and the
Corporations Regulations made under the Corporations Law; and
(ii) after the commencement of Schedule 1 of the
Corporations Law Economic Reform Program Xxx 0000, has not
and will not offer for issue, or invite applications for the
issue of, the Class A-2 Notes and the Class B Notes or offer
the Class A-2 Notes and the Class B Notes for sale or invite
offers to purchase the Class A-2 Notes and the Class B Notes
to a person, where the offer or invitation is received by that
person in Australia, unless the minimum amount payable for the
Class A-2 Notes or the Class B Notes (as the case may be)
(after disregarding any amount lent by any of the CBA Parties
or any associate (as determined under sections 10 to 17 of the
Corporations Law) of any CBA Party) on acceptance of the
offer by that person is at least A$500,000 or the offer or
invitation otherwise does not require disclosure to investors
in accordance with Part 6D.2 of the Corporations Law.
II. The CBA Parties severally covenant and agree with each of the
several Underwriters and the Issuer Trustee as follows:
-17-
(a) in the case of the Manager only, to use its best efforts
to cause the Registration Statement to become effective at the earliest possible
time and, if required, to file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A under the Securities
Act, and to furnish copies of the Prospectus to the Underwriters in New York
City prior to 10:00 a.m., New York City time, on the Business Day next
succeeding the date of this Agree ment in such quantities as the Representative
may reasonably request;
(b) in the case of the Manager only, to deliver, at the
expense of the Manager, to the Representative, signed copies of the Registration
Statement (as originally filed) and each amendment thereto, in each case
including exhibits, and to each other Underwriter a conformed copy of the
Registration Statement (as originally filed) and each amendment thereto, in each
case without exhibits and, during the period mentioned in paragraph (e) below,
to each of the Underwriters as many copies of the Prospectus (including all
amendments and supplements thereto and documents incorporated by reference
therein) as the Representative may reasonably request;
(c) in the case of the Manager only, before filing any
amendment or supplement to the Registration Statement or the Prospectus, whether
before or after the time the Registration Statement becomes effective, to
furnish to the Representative a copy of the proposed amendment or supplement
for review and not to file any such proposed amendment or supplement to which
the Representative reason ably objects;
(d) in the case of the Manager only, to advise the
Representative promptly, and to confirm such advice in writing, (i) when the
Registration Statement has become effective, (ii) when any amendment to the
Registration Statement has been filed or becomes effective, (iii) when any
supplement to the Prospectus or any amendment to the Prospectus has been filed
and to furnish the Representative with copies thereof, (iv) of any request by
the Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or the Prospectus or the initia tion or threatening of
any proceeding for that purpose, and (vi) of the occurrence of any event, within
the period referenced in paragraph (e) below, as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the
-18-
statements therein, in light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading and to use its best efforts to prevent
the issuance of any such stop order, or of any order preventing or suspending
the use of any preliminary prospectus or the Prospectus, or of any order
suspending and such qualification of the Class A-1 Notes, or notification of any
such order thereof and, if issued, to obtain as soon as possible the withdrawal
thereof;
(e) to advise the Representative promptly, and to confirm such
advice in writing of the receipt by a CBA Party of any notification with respect
to any suspension of the qualification of the Class A-1 Notes for offer and sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(f) in the case of the Manager only, if, during such period of
time after the first date of the public offering of the Class A-1 Notes as in
the opinion of counsel for the Underwriters a prospectus relating to the Class
A-1 Notes is required by law to be delivered in connection with sales by an
Underwriter or a dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and furnish, at the expense
of the CBA Parties, to the Underwriters and to the dealers (whose names and
addresses the Representative will furnish to CBA) to which Class A-1 Notes may
have been sold by the Representative on behalf of the Underwriters and to any
other dealers upon request, such amendments or supplements to the Prospectus as
may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply
with law;
(g) in the case of the Manager only, to endeavor to qualify
the Class A-1 Notes for offer and sale under the securities or Blue Sky laws of
such jurisdictions as the Representative shall reasonably request and to
continue such qualification in effect so long as reasonably required for
distribution of the Class A-1 Notes; provided that the Manager shall not be
required to file a general consent to service of process in any jurisdiction;
(h) in the case of the Manager only, to make generally
available to the holders of the Class A-1 Notes and to the Representative as
soon as practicable an earnings statement covering a period of at least twelve
months beginning with the
-19-
first fiscal quarter of the Trust occurring after the effective date of the
Registration Statement, which shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 of the Commission promulgated thereunder;
(i) in the case of the Manager only, so long as the Class A-1
Notes are outstanding, to furnish to the Representative (i) copies of each
certificate, the annual statement of compliance and the annual independent
certified public accountant's audit report on the financial statements furnished
to the Issuer Trustee pursuant to the Basic Documents by first class mail as
soon as practicable after such statements and reports are furnished to the
Issuer Trustee, (ii) copies of each amendment to any of the Basic Documents,
(iii) on each Determination Date or as soon thereafter as practicable, notice by
telex or facsimile to the Representative of the Pool Factor as of the related
Record Date, (iv) copies of all reports or other communications (financial or
other) furnished to holders of the Class A-1 Notes, and copies of any reports
and financial statements furnished to or filed with the Commission, any
governmental or regulatory authority or any national securities exchange, and
(v) from time to time such other information concerning the Trust or the CBA
Parties as the Representative may reasonably request;
(j) to the extent, if any, that the ratings provided with
respect to the Class A-1 Notes by the Rating Agencies are conditional upon the
furnishing of documents or the taking of any other action by a CBA Party or the
Issuer Trustee, the relevant CBA Party shall use its best efforts to furnish
such documents and take any other such action or, in the case of the Issuer
Trustee, it will use its best efforts to procure the Issuer Trustee to do so;
(k) it will on behalf of the Issuer Trustee: (i) for the
purposes of 128F of the Australian Tax Act, seek a listing of the Class A-1
Notes on the London Stock Exchange before the Issuer Trustee issues any Class
A-1 Note, (ii) ensure that the Issuer Trustee will not offer, issue or sell the
Class A-1 Notes to the Underwriters, until the Class A-1 Notes have been
admitted to the Official List of the London Stock Exchange or the
Representative, on behalf of the Underwriters, is satisfied that the Class A-1
Notes will be admitted after the Closing Date and (iii) it will, use its best
efforts to maintain such listing for as long as any of the Class A-1 Notes are
outstanding; provided, however, if such listing becomes impossible, to use their
best efforts to obtain, and will thereafter use its best efforts to maintain a
quotation for, or listing of, the Class A-1 Notes on such other exchange as is
commonly used for the quotation or listing of debt securities as they may, with
the approval of X.X. Xxxxxx, decide;
-20-
(l) to furnish from time to time copies of the Prospectus and
any and all documents, instruments, information and undertakings (in addition to
any already published or lodged with the London Stock Exchange) and publish all
advertisements or other material and to comply with any other requirements of
the London Stock Exchange that may be necessary in order to effect and maintain
such listing;
(m) not to take, or cause to be taken, any action and will not
knowingly permit any action to be taken which it knows or has reason to believe
would result in the Class A-1 Notes not being assigned the rating referred to in
Section 6(q) below;
(n) in the case of the Manager only, to assist X.X. Xxxxxx in
making arrangements with DTC, Euroclear and Clearstream concerning the issue of
the Book-Entry Notes and related matters;
(o) in the case of the Manager only, if required, to register
the Class A-1 Notes pursuant to the Securities Exchange Act of 1934, as amended,
as soon as reasonably practicable as such requirement comes into effect but no
later that when such registration may become required by law;
(p) in the case of CBA only, whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
to pay, or cause to be paid, all fees costs and expenses incident to the
performance, including, without limiting the generality of the foregoing, all
fees, costs and expenses: (i) incident to the preparation, issuance, execution,
authentication and delivery of the Notes, including any fees, costs and expenses
of the Class A-1 Note Trustee or any transfer agent, (ii) incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement, the Prospectus and any preliminary prospectus (including in each case
all exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Class A-1 Notes under the laws of such jurisdictions as the
Underwriters may designate (including fees of counsel for the Underwriters and
their disbursements with respect thereto), (iv) in connection with the listing
of the Notes on any stock exchange, (v) related to any filing with National
Association of Securities Dealers, Inc., (vi) in connection with the printing
(including word processing and duplication costs) and delivery of this
Agreement, the Basic Documents, the Preliminary and Supplemental Blue Sky
Memoranda and
-21-
any Legal Investment Survey and the furnishing to Underwriters and dealers of
copies of the Registration Statement and the Prospectus, including mailing and
shipping, as provided in this Agreement, (vii) the CBA Parties' counsel and
accountants and the Underwriters' counsel fees and disbursement that are
chargeable to CBA, (viii) any expenses incurred by the CBA Parties in connection
with any "roadshow" presentation to potential investors (except for up to
[A]$50,000 of those expenses to be paid by [X.X. Xxxxxx/the Underwriters] if the
transaction contemplated by this Agreement is consummated) and (ix) payable to
rating agencies in connection with the rating of the Notes;
(q) to indemnify and hold harmless the Underwriters against
any documentary, stamp or similar issue tax, including any interest and
penalties, on the creation, issue and sale of the Class A-1 Notes in accordance
with this Agreement and on the execution and delivery of this Agreement and any
value added tax or goods and services tax payable in connection with any
concessions, commissions and other amounts payable or allowable by the Issuer
Trustee; to make all payments to be made by the CBA Parties or the Issuer
Trustee under this Agreement without withholding or deduction for or on account
of any present or future taxes, duties or governmental charges whatsoever unless
the relevant CBA Party is compelled by law to deduct or withhold such taxes,
duties or charges. In that event, the relevant CBA Party shall pay such
additional amounts as may be necessary in order that the net amounts received
after such withholding or deduction shall equal the amount that would have been
received if no withholding or deduction had been made;
(r) in the case of the Manager only, to cause the Issuer
Trustee to:
(i) sign and deliver to the London Stock Exchange a
listing application and copies of the Prospectus on or prior
to the Closing Date;
(ii) cause the Prospectus to be approved as listing
particulars by or on behalf of the London Stock Exchange as
required by Section 144(2) of the Financial Services Act and
the Listing Rules; and
(iii) cause two copies of the Prospectus to be
delivered to the Registrar of Companies in England and Wales
for registration as required by Section 149 of the Financial
Services Act, on or before the date of publication thereof;
and
-22-
(s) if, after the Prospectus has been published and following
the admission of the Class A-1 Notes to the Official List of the London Stock
Exchange:
(i) there is a significant change affecting any
matter contained in the Prospectus the inclusion of which was
required by Section 146 of the Financial Services Act or by
the Listing Rules or by the London Stock Exchange; or
(ii) a significant new matter arises the inclusion of
information in respect of which would have been so required
if it had arisen when the Prospectus was prepared,
to notify the Representative on behalf of the Underwriters as soon as reasonably
practicable and will, in accordance with the Listing Rules, submit to the London
Stock Exchange for its approval and, if approved, publish a supplement to the
Prospectus of the change or new matter;
(t) in connection with the initial distribution of the Class
A-2 Notes and the Class B Notes, it and each person acting on behalf of the CBA
Parties (other than the Co-Managers, each of whom has agreed and covenanted with
CBA as follows):
(i) before the commencement of Schedule 1 of the
Corporations Law Economic Reform Program Xxx 0000:
(A) has not (directly or indirectly) offered
for subscription or purchase issued invitations to
subscribe for or buy nor has it sold any Class A-2
Notes or any Class B Notes;
(B) will not (directly or indirectly) offer
for subscription or purchase or issue invitations to
subscribe for or buy nor will it sell any Class A-2
Notes or any Class B Notes; and
(C) has not distributed and will not
distribute any draft, preliminary or definitive
prospectus, offering memorandum, advertisement or
other offering material relating to the Class A-2
Notes or any Class B Notes,
-23-
in the Commonwealth of Australia, its territories or
possessions, unless, the consideration payable by each person
to whom an offer or sale is made or to whom an invitation is
issued is a minimum amount of A$500,000 or the offer or
invitation is otherwise an excluded offer or excluded
invitation for the purposes of the Corporations Law (within
the meaning of the Corporations Xxx 0000 of Australia) and the
Corporations Regulations made under the Corporations Law;
(ii) after the commencement of Schedule 1 of the
Corporations Law Economic Reform Program Xxx 0000, has not
and will not offer for issue, or invite applications for the
issue of, the Class A-2 Notes and the Class B Notes or offer
the Class A-2 Notes and the Class B Notes for sale or invite
offers to purchase the Class A-2 Notes and the Class B Notes
to a person, where the offer or invitation is received by that
person in Australia, unless the minimum amount payable for the
Class A-2 Notes or the Class B Notes (as the case may be)
(after disregarding any amount lent by any of the CBA Parties
or any associate (as determined under sections 10 to 17 of the
Corporations Law) of any CBA Party) on acceptance of the
offer by that person is at least A$500,000 or the offer or
invitation otherwise does not require disclosure to investors
in accordance with Part 6D.2 of the Corporations Law; and
(u) to procure that the charges created by or contained in the
Security Trust Deed are registered within all applicable time limits in all
appropriate registers.
III. Selling Restrictions
(a) No prospectus in relation to the Class A-1 Notes has been
lodged with, or registered by, the Australian Securities and Investments
Commission or the Australian Stock Exchange Limited. Accordingly, each of the
Underwriters, severally and not jointly, represents and agrees that, in
connection with the initial distribution of the Class A-1 Notes, it:
(i) has not (directly or indirectly) offered for
subscription or purchase or issued invitations to subscribe
for or buy nor has it sold the Class A-1 Notes;
-24-
(ii) will not (directly or indirectly) offer for
subscription or purchase or issue invitations to subscribe for
or buy nor will it sell the Class A-1 Notes; and
(iii) has not distributed and will not distribute any
draft, preliminary or definitive Prospectus, offering
memorandum, advertisement or other offering material relating
to the Class A-1 Notes,
in the Commonwealth of Australia, its territories or possessions.
(b) Each Underwriter, severally and not jointly, agrees with
the Issuer Trustee that, within 30 days of the date of this Agreement, it will
have offered the Class A-1 Notes for sale, or invited or induced offers to buy
the Class A-1 Notes by:
(i) making each preliminary prospectus or the
Prospectus available for inspection on a Bloomberg source and
inviting potential investors to access the preliminary
prospectus or the Prospectus available on that Bloomberg
source; or
(ii) making hard copies of each preliminary
prospectus or the Prospectus for the Class A-1 Notes available
for collection from that Underwriter in at least its principal
office in New York City or London and, in the case of
purchasers in the United States, by sending or giving copies
of that preliminary prospectus or the Prospectus to those
purchasers.
(c) Each Underwriter agrees that it will not sell Class A-1
Notes to, or invite or induce offers for the Class A-1 Notes from:
(i) any associate of the Issuer Trustee or a CBA
Party specified in Schedule II or Schedule III; or
(ii) any other associate from time to time specified
in writing to the Underwriter by the Issuer Trustee or a CBA
Party.
(d) Each Underwriter, severally and not jointly, agrees to:
-25-
(i) provide written advice to the Issuer Trustee and
the Manager within 40 days of the issue of the Class A-1 Notes
specifying that it has complied with section 5(III)(b); and
(ii) cooperate with reasonable requests from the
Issuer Trustee for information for the purposes of assisting
the Issuer Trustee to demonstrate that the public offer test
under section 128F of the Tax Act has been satisfied in
respect of the Class A-1 Notes,
provided that no Underwriter shall be obliged to disclose:
(x) the identity of the purchaser of any Class A-1
Note or any information from which such identity might be
capable of being ascertained; or
(y) any information the disclosure of which would be
contrary to or prohibited by any relevant law, regulation or
directive.
(e) Each Underwriter, severally and not jointly, represents
and agrees that it (i) has not offered or sold, and prior to admission of the
Class A-1 Notes to listing in accordance with Part IV of the Financial Services
Act will not offer or sell any Class A-1 Notes to persons in the United Kingdom
except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their business or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulation 1995, as amended, or the Financial
Services Act, (ii) has complied with and will comply with all applicable
provisions of the Financial Services Act with respect to anything done by it in
relation to the Class A-1 Notes, in, from or other wise involving the United
Kingdom, and (iii) has only issued or passed on and will only issue or pass on
in the United Kingdom any document received by it in connec tion with the issue
of the Class A-1 Notes, other than any document which consists of, or any part
of, listing particulars, supplementary listing particulars or any other document
required or permitted to be published by listing rules under Part IV of the
Financial Services Act to a person who is a kind described in Article 11(3) of
the Financial Services Act (Investment Advertisements) (Exemptions) Order 1996,
as amended, or is a person to whom the document may otherwise lawfully be issued
or passed on.
-26-
(f) Each Underwriter, severally and not jointly, acknowledges
that no action has been taken to permit a public offering of the Class A-1 Notes
in any jurisdiction outside the United States where action would be required for
that purpose. Each Underwriter will comply with all applicable securities laws
and regulations in each jurisdiction in which it purchases, offer, sells or
delivers Class A-1 Notes or has in its possession or distributes the Prospectus
or any other offering material in all cases at its own expense.
IV. The Manager hereby directs the Issuer Trustee to do each of the
things (or, as the case may be, not to do the things) specified in Section 5.I.
and the Issuer Trustee acknowledges and accepts that direction.
6. Conditions to the Obligations of the Underwriters. The several
obligations of the Underwriters hereunder are subject to the performance by the
Issuer Trustee and the CBA Parties of their obligations hereunder and to the
following additional conditions:
(a) the Registration Statement shall have become effective, or
if a post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment shall have become effective, not later than 5:00
P.M., New York City time, on the date hereof; and no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission; the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act and in
accordance with Section 5(a) hereof; and all requests for additional information
shall have been complied with to the satisfaction of the Representative;
(b) the representations and warranties of the Issuer Trustee
and the CBA Parties contained herein are true and correct on and as of the
Closing Date as if made on and as of the Closing Date and the representations
and warranties of the Issuer Trustee and CBA Parties in the Basic Documents will
be true and correct on the Closing Date; and the Issuer Trustee and the CBA
Parties shall have complied with all agreements and all conditions on the part
of each to be performed or satisfied hereunder and under the Basic Documents at
or prior to the Closing Date;
-27-
(c) all actions required to be taken and all filings required
to be made by the Manager or the Issuer Trustee under the Securities Act prior
to the Closing Date for the Notes shall have been duly taken or made;
(d) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date: (x) there shall not have occurred any downgrading
in any rating accorded any securities of, or guaranteed by, CBA by any
"nationally recognized statistical rating organization" (as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act) to: (i) "A2" or worse
in the case of the rating accorded by Xxxxx'x Investors Services, Inc., (ii) "A"
or worse in the case of a rating accorded by Standard & Poor's (Australia) Pty
Limited or (iii) the equivalent of "A2" or "A" or worse in the case of the
rating accorded by any other "nationally recognized statistical rating
organization" nor (y) shall any notice have been given of any intended or
potential downgrading as is referred to in subclause (x) of this paragraph (d);
(e) since the date of this Agreement, there shall not have
been any material adverse change or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
prospects, management, financial position, stockholders' equity or results of
operations of the Issuer Trustee or any of the CBA Parties, taken as a whole,
otherwise than as set forth or contem plated in the Prospectus, the effect of
which in the judgment of the Representative makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Class A-1
Notes on the Closing Date on the terms and in the manner contemplated in the
Prospectus;
(f) the Representative shall have received on and as of the
Closing Date a certificate of an Authorized Officer of the Issuer Trustee and
each CBA Party, with specific knowledge about the party's financial matters,
satisfactory to the Representative to the effect set forth in subsections (a)
through (e) of this Section;
(g) the Representative shall have received letters, dated the
date of delivery thereof, of (i) Ernst & Young LLP, in form and substance
satisfactory to the Representative and counsel for the Underwriters, confirming
that they are independent public accountants within the meaning of the
Securities Act and the applicable Rules and Regulations and stating in effect
that they have performed certain specified procedures as a result of which they
determined that certain information of an accounting, financial or statistical
nature set forth in the Registration Statement and
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the Prospectus (and any amendments and supplements thereto), agrees with the
accounting records of CBA, excluding any questions of legal interpretation, and
(ii) PriceWaterhouseCoopers, in form and substance satisfactory to the
Representative and counsel for the Underwriters, stating in effect that they
have performed certain specified procedures with respect to the Mortgage Loans;
(h) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special United
States counsel to the Underwriters, shall have furnished to X.X. Xxxxxx their
written opinion, dated the Closing Date, with respect to the Registration
Statement, the Prospectus and other related matters as X.X. Xxxxxx may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(i) Xxxxx Xxxxx & Xxxxx, United States counsel for the CBA
Parties, shall have furnished to the Representative their written opinion, dated
the Closing Date, substantially in the form of Exhibit A and otherwise in form
and substance satisfactory to the Representative, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(j) Xxxxx Xxxxx & Xxxxx, United States federal income tax
counsel for the CBA Parties shall have furnished to the Representative their
written opinion, dated the Closing Date, substantially in the form of Exhibit B
and otherwise in form and substance satisfactory to the Representative, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(k) Xxxxxxx Xxx, Australian counsel for the CBA Parties, shall
have furnished to the Representative their written opinion, dated the Closing
Date, in form and substance satisfactory to the Representative, and such counsel
shall have received such papers and information as they may reasonably request
to enable them to pass upon such matters;
(l) Xxxxxxx Xxx, Australian tax counsel for the CBA Parties,
shall have furnished to the Representative their written opinion, dated the
Closing Date, in form and substance satisfactory to the Representative, and such
Australian tax counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
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(m) Mallesons Xxxxxxx Xxxxxx, Australian counsel for the
Issuer Trustee and the Security Trustee, shall have furnished to the
Representative their written opinion, dated the Closing Date, substantially in
the form of Exhibit C and otherwise in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
(n) the Chief Solicitor and General Counsel of CBA shall have
furnished to the Representative their written opinion, dated the Closing Date,
substantially in the form of Exhibit D and otherwise in form and substance
satisfactory to the Representative, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(o) Counsel to the Interest Rate Swap Provider and Currency
Swap Providers shall have furnished to the Representative their written opinion
dated the Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
(p) the Representative shall have received a letter or letters
from each counsel delivering any written opinion to any Rating Agency in
connection with the transaction described in this Agreement which opinion is not
otherwise described in this Agreement allowing the Representative to rely on
such opinion as if it were addressed to the Representative;
(q) the Representative shall have received copies of letters
from Xxxxx'x Investors Service, Inc. and Standard & Poor's (Australia) Pty
Limited and Fitch IBCA (the "Rating Agencies") stating that the Class A-1 Notes
have been rated AAA or its equivalent by the Rating Agencies;
(r) the Class A-1 Notes shall have been admitted to the
Official List of the London Stock Exchange or such other exchange as the parties
shall agree upon or the Representative shall be satisfied that such listing will
be granted after the Closing Date but in any event, prior to the first Payment
Date for the Class A-1 Notes;
(s) the Representative shall have received evidence
satisfactory to it and its counsel that on or prior to the Closing Date the
Class A-2 Notes and the
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Class B Notes have been duly authorized, executed, authenticated, issued and
delivered pursuant to the Basic Documents; and
(t) on or prior to the Closing Date the Issuer Trustee and the
CBA Parties shall have furnished to the Representative such further certificates
and documents as the Representative shall reasonably request.
7. (a) Indemnification and Contribution. Each of the CBA Parties agrees
jointly and severally to indemnify and hold harmless each Underwriter, each
affiliate of an Underwriter that assists such Underwriter in the distribution of
the Class A-1 Notes and each person, if any, that controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against (x) any and all losses, claims, damages and
liabilities (including, without limitation, the legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the CBA Parties shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (y) any and all legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted caused by any untrue statement or alleged untrue statement of material
fact contained in any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated in or
necessary to make the statements in not misleading, except in (i) insofar as any
such losses, claims, damages, liabilities, legal fees and other expenses are
caused by any untrue statement or omission or alleged untrue statement or
omission made (A) in reliance upon and in conformity with information relating
to any Underwriter furnished to a CBA Party in writing by such Underwriter
through X.X. Xxxxxx expressly for use therein or (B) in the Prepayment and Yield
Information (as defined in the next paragraph); or (ii) that such indemnity with
respect to any preliminary prospectus or the Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling any Underwriter) from whom
the person asserting any such loss, claim, damage or liability, purchased the
Class A-1 Notes which are the subject hereof, if such person did not receive a
copy of the Prospectus (or the Prospectus as amended or supplemented) at or
prior to the confirmation of the sale of such Class A-1 Notes to such person,
and where such delivery is required by the Securities Act and the alleged untrue
statement contained in, or omission of a material fact from (i) any preliminary
prospectus was corrected
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in the Prospectus (or the Prospectus as amended or supplemented) or (ii) the
Prospectus was corrected in the Prospectus as amended or supplemented;
For the purposes of this Agreement, the term "Prepayment and Yield
Information" means that portion of the information in any preliminary
prospectus or the Prospectus (or the Prospectus as amended or supplemented) set
forth under the sub-heading "Prepayment and Yield Considerations - Weighted
Average Lives", including the table entitled "Percent of Initial Principal
Outstanding of the Following Percentages of Constant Prepayment Rate", that is
not Pool Information; provided, however, that information set forth under that
sub-heading that is not Pool Information shall not constitute Prepayment and
Yield Information to the extent such information is inaccurate or misleading in
any material respect as a result of it being based on Pool Information that is
inaccurate or misleading in any material respect. "Pool Information" means the
information furnished by magnetic tape, diskette or any other computer readable
format, or in writing to the Underwriters by any CBA Party regarding the
Mortgage Loans.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Manager, its directors, its officers who sign
the Registration Statement, the Issuer Trustee and CBA and each person that
controls a CBA Party or the Issuer Trustee within the meaning of Section 15 of
the Securities Act and Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the CBA Parties to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the CBA
Parties in writing by such Underwriter through X.X. Xxxxxx expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnity may be sought pursuant
to subsection (a) or (b) above, such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person
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shall have mutually agreed to the contrary, (ii) the Indemnifying Person has
failed within a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding (including
any impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters,
each affiliate of any Underwriter which assists such Under writer in the
distribution of the Notes and such control persons of Underwriters shall be
designated in writing by X.X. Xxxxxx and any such separate firm for the Manager,
its directors, its officers who sign the Registration Statement, CBA and the
Issuer Trustee and such control persons of each of the Issuer Trustee and the
CBA Parties shall be designated in writing by that party. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this subsection (c), the Indemnifying Person agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemni fied Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from
all liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in subsection (a) or
(b) above is unavailable to an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such subsection, in lieu of indemnifying such Indemnified Person
thereunder, shall
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contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the CBA Parties and the
Issuer Trustee on the one hand and the Underwriters on the other hand from the
offering of the Class A-1 Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the CBA Parties and the Issuer Trustee on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the CBA Parties and the Issuer Trustee on the one hand and the Underwriters
on the other shall be deemed to be in the same respective proportions as the net
proceeds from the offering (before deducting expenses) received by the CBA
Parties and the Issuer Trustee and the total underwriting discounts and the
commissions received by the Underwriters bear to the aggregate public offering
price of the Class A-1 Notes. The relative fault of the CBA Parties and the
Issuer Trustee on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by a CBA Party or the Issuer
Trustee or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The CBA Parties, the Issuer Trustee and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in this subsection (d)
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
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entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7 are several in proportion to the respective principal amount of Class
A-1 Notes set forth opposite their names in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(e) The indemnity and contribution agreements contained in
this Section 7 and the representations and warranties of the Issuer Trustee and
the CBA Parties set forth in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Issuer Trustee or a CBA Party, its
officers or directors or any other person controlling the Issuer Trustee or a
CBA Party and (iii) acceptance of and payment for any of the Class A-1 Notes.
(f) To the extent that any payment of damages by a CBA Party
pursuant to subsection (a) above is determined to be a payment of damages
pursuant to Prudential Statement C2- "Funds Management and Securitisation" such
payment shall be subject to the terms of Section 89 of that statement.
8. Termination. Notwithstanding anything herein contained, this
Agreement may be terminated in the absolute discretion of X.X. Xxxxxx, by notice
given to the Issuer Trustee and each CBA Party, if after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the London Stock Exchange or the Australian
Stock Exchange, (ii) trading of any securities of or guaranteed by the Issuer
Trustee or any CBA Party shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York, Sydney or London shall have been declared by either
United States Federal, New York State, Commonwealth of Australia, New South
Wales State or United Kingdom authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of X.X. Xxxxxx, is material and adverse
and which, in the judgment of X.X. Xxxxxx, makes it impracticable to market the
Class A-1 Notes on the terms and in the manner contem plated in the Prospectus.
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9. Effectiveness of Agreement; Default of Underwriters. This Agreement
shall become effective upon the later of (x) execution and delivery hereof by
the parties hereto and (y) release of notification of the effectiveness of the
Registration Statement (or, if applicable, any post-effective amendment) by the
Commission.
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase Class A-1 Notes which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Class A-1 Notes
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of the
Class A-1 Notes to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Class A-1
Notes set forth opposite their respective names in Schedule I bears to the
aggregate principal amount of Class A-1 Notes set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as X.X.
Xxxxxx may specify, to purchase the Class A-1 Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the principal amount of Class A-1 Notes
that any Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such principal
amount of Class A-1 Notes without the written consent of such Underwriter. If
on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Class A-1 Notes which it or they have agreed to purchase hereunder on
such date, and the aggregate principal amount of Class A-1 Notes with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Class A-1 Notes to be purchased on such date, and arrangements
satisfactory to X.X. Xxxxxx and the Manager for the purchase of such Notes are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the CBA
Parties and the Issuer Trustee. In any such case either X.X. Xxxxxx or the
Manager shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. Expenses Upon Termination. If this Agreement shall be terminated by
the Underwriters, or any of them, because of any failure or refusal on the part
of the Issuer Trustee or a CBA Party to comply with the terms or to fulfill any
of the
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conditions of this Agreement, or if for any reason the Issuer Trustee or a CBA
Party shall be unable to perform its obligations under this Agreement or any
condition of the Underwriters' obligations cannot be fulfilled, the CBA Parties
jointly and severally agree to reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the CBA Parties, the Issuer Trustee, the Underwriters, each
affiliate of any Underwriter which assists such Underwriter in the distribution
of the Class A-1 Notes, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Notes from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Certain Matters Relating to the Issuer Trustee.
(a) The Issuer Trustee enters into this Agreement only in its
capacity as Trustee of the Trust and in no other capacity. A liability incurred
by the Issuer Trustee acting in its capacity as Issuer Trustee of the Trust
arising under or in connection with this Agreement is limited to and can be
enforced against the Issuer Trustee only to the extent to which it can be
satisfied out of Assets of the Trust out of which the Issuer Trustee is actually
indemnified for the liability. This limitation of the Issuer Trustee's liability
applies despite any other provision of this Agreement (other than section 12(c))
to the contrary and extends to all liabilities and obligations of the Issuer
Trustee in any way connected with any representation, warranty, conduct,
omission, agreement or transaction related to this Agreement.
(b) Each Underwriter and each of the CBA Parties may not xxx
the Issuer Trustee in respect of liabilities incurred by the Issuer Trustee,
acting in its capacity as Issuer Trustee of the Trust, in any capacity other
than as Issuer Trustee of the Trust including seeking the appointment of a
receiver (except in relation to the Assets of the Series Trust), or a
liquidator, an administrator or any similar person to the Issuer Trustee or
prove in any liquidation, administration or arrangements of or affecting the
Issuer Trustee (except in relation to the Assets of the Trust).
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(c) The provisions of this section 12 will not apply to any
obligation or liability of the Issuer Trustee to the extent that it is not
satisfied because under the Master Trust Deed, this Agreement or any other
Transaction Document in relation to the Trust or by operation of law there is a
reduction in the extent of the Issuer Trustee's indemnification or exoneration
out of the Assets of the Trust, as a result of the Issuer Trustee's fraud,
negligence or wilful default (as defined in the Series Supplement).
(d) It is acknowledged that the Relevant Parties (as defined
in the Series Supplement) are responsible under the Basic Documents for
performing a variety of obligations relating to the Trust. No act or omission of
the Issuer Trustee (including any related failure to satisfy its obligations and
any breach of representations and warranties under this Agreement) will be
considered fraudulent, negligent or a wilful default for the purpose of section
12(c) to the extent to which the act or omission was caused or contributed to by
any failure by any Relevant Party (other than any person for whom the Issuer
Trustee is responsible or liable for in accordance with any Transaction
Document) to fulfil its obligations relating to the Trust or by any other act or
omission of a Relevant Party or any other such person.
13. Actions by Representative; Notices. Any action by the Underwriters
hereunder may be taken by X.X. Xxxxxx Securities Inc. on behalf of the
Underwriters, and any such action taken by X.X. Xxxxxx Securities Inc. shall be
binding upon the Underwriters. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given to X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000 (Facsim ile No.: (000) 000-0000); Attention:
Structured Syndicate Desk. Notices to CBA and the Manager shall be given to it
at Commonwealth Bank of Australia, 00 Xxxxxx Xxxxx, 0xx Xxxxx, Xxxxxx, XXX, 0000
(Facsimile No.:(000) 0000-0000); Attention: Xxxxxx Xxxxx, Group Treasury.
Notices to the Issuer Trustee shall be given to it at Perpetual Trustees
Australia Limited, Xxxxx 0, Xxxxxx Xxxxxx, Xxxxxx, XXX, 0000 (Facsimile
No.:(000) 0000-0000); Attention: Manager, Securitisation.
14. Counterparts; Applicable Law. This Agreement may be signed in
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the conflicts of laws provisions thereof.
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15. Submission to Jurisdiction. Each of the CBA Parties and the Issuer
Trustee submits to the non-exclusive jurisdiction of any Federal or State court
in the City, County and State of New York, United States of America, in any
legal suit, action or proceeding based on or arising under this Agreement and
agrees that all claims in respect of such suit or proceeding may be determined
in any such court. Each of the CBA Parties and the Issuer Trustee waives, to the
extent permitted by law, the defense of an inconvenient forum or objections to
personal jurisdiction with respect to the maintenance of such legal suit, action
or proceedings any objection to the laying of the venue of any such suit, action
or proceeding in any Federal or State court in the City, County and State of New
York, United States of America. To the extent that each of the CBA Parties and
the Issuer Trustee or any of their respective properties, assets or revenues may
have or may hereafter become entitled to, or have attributed to it, any right of
immunity from any legal action, suit or proceeding, from setoff or counterclaim,
from the jurisdiction of any court, from service of process, attachment upon or
prior to judgment, or attachment in aid of execution of judgment, or from
execution of a judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of a judgment, in any such jurisdiction, with
respect to its obligations, liabilities or any other matter under or arising out
of or in connection with the issuance of the Class A-1 Notes or this Agreement,
each of the CBA Parties and the Issuer Trustee hereby irrevocably and
unconditionally waives and agrees not to plead or claim any such immunity and
consents to such relief and enforcement.
16. Appointments of Process Agent. (a) Each of the CBA Parties hereby
designates and appoints Commonwealth Bank of Australia, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, XX00000 (Attention: Xxx Xxxxxxxx) (the "CBA Process Agent"), as its
authorized agent, upon whom process may be served in any legal suit, action or
proceeding based on or arising under or in connection with this Agreement, it
being understood that the designation and appointment of Commonwealth Bank of
Australia, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX00000 (Attention: Xxx Xxxxxxxx) as
such authorized agent shall become effective immediately without any further
action on the part of the each of the CBA Parties. Such appointment shall be
irrevocable to the extent permitted by applicable law and subject to the
appointment of a successor agent in the United States on terms substantially
similar to those contained in this Section 16 and reasonably satisfactory to
X.X. Xxxxxx. If the CBA Process Agent shall cease to act as agent for service of
process, each of the CBA Parties shall appoint, without unreasonable delay,
another such agent, and notify X.X. Xxxxxx of such appointment. Each of the CBA
Parties represents to the Underwriters that it has
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notified the CBA Process Agent of such designation and appointment and that the
CBA Process Agent has accepted the same in writing. Each of the CBA Parties
hereby authorizes and directs the CBA Process Agent to accept such service. Each
of the CBA Parties further agrees that service of process upon the CBA Process
Agent and written notice of that service to it shall be deemed in every respect
effective service of process upon it in any such legal suit, action or
proceeding. Nothing in this Section 16 shall affect the right of any Underwriter
or any person controlling any Underwriter to serve process in any other manner
permitted by law.
(b) The Issuer Trustee hereby designates and appoints [ ] (the
"IT Process Agent"), as its authorized agent, upon whom process may be served in
any legal suit, action or proceeding based on or arising under or in connection
with this Agreement, it being understood that the designation and appointment of
[ ] as such authorized agent shall become effective immediately without any
further action on the part of the Issuer Trustee. Such appointment shall be
irrevocable to the extent permitted by applicable law and subject to the
appointment of a successor agent in the United States on terms substantially
similar to those contained in this Section 16 and reasonably satisfactory to
X.X. Xxxxxx. If the IT Process Agent shall cease to act as agent for service of
process, the Issuer Trustee shall appoint, without unreasonable delay, another
such agent, and notify X.X. Xxxxxx of such appointment. The Issuer Trustee
represents to the Underwriters that it has notified the IT Process Agent of such
designation and appointment and that the IT Process Agent has accepted the same
in writing. The Issuer Trustee hereby authorizes and directs the IT Process
Agent to accept such service. The Issuer Trustee further agrees that service of
process upon the IT Process Agent and written notice of that service to it shall
be deemed in every respect effective service of process upon it in any such
legal suit, action or proceeding. Nothing in this Section 16 shall affect the
right of any Underwriter or any person controlling any Underwriter to serve
process in any other manner permitted by law.
17. Currency Indemnity. The obligations of the parties to make payments
under this Agreement are in U.S. dollars. Such obligations shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in any currency other than U.S. dollars or any other realization in
such other currency, whether as proceeds of set-off security, guarantee,
distributions, or otherwise, except to the extent to which such tender recovery
or realization shall result in the receipt by the party which is to receive such
payment of the full amount of the U.S. dollars expressed to be payable under
this Agreement. The party liable to make such payment agrees to indemnify the
party which is to receive such payment for the
-40-
amount (if any) by which the full amount of U.S. dollars exceeds the amount
actually received, and, in each case, such obligation shall not be affected by
judgment being obtained for any other sums due under this Agreement. The parties
agree that the rate of exchange which shall be used to determine if such tender,
recovery or realization shall result in the receipt by the party which is to
receive such payment of the full amount of U.S. dollars expressed to be payable
under this Agreement shall be the noon buying rate in New York City for cable
transfers in such foreign currency as certified for customs purposes by the
Federal Reserve Bank of New York of the business day preceding that on which the
judgment becomes a final judgment or, if such noon buying rate is not available,
the rate of exchange shall be the rate at which in accordance with normal
banking procedures X.X. Xxxxxx Securities Inc. could purchase United States
dollars with such foreign currency on the business day preceding that on which
the judgment becomes a final judgment.
-41-
If the foregoing is in accordance with your understanding, please sign
and return the enclosed counterparts hereof.
Very truly yours,
COMMONWEALTH BANK OF
AUSTRALIA
By:_______________________
Name:
Title:
SECURITISATION ADVISORY SER
VICES PTY LIMITED
By:_______________________
Name:
Title:
PERPETUAL TRUSTEE COMPANY
LIMITED in its capacity as Trustee of
the Trust
By:_______________________
Name:
Title:
Accepted: __________, 2000
X.X. Xxxxxx Securities Inc.
Acting on behalf of itself and the several Underwriters listed in Schedule I
hereto.
By:___________________________
Name:
Title:
-42-
SCHEDULE I
PRINCIPAL AMOUNT OF
SECURITIES TO BE PURCHASED
Underwriter
X.X. Xxxxxx Securities Inc...................................
Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx, Incorporated...........
Credit Suisse First Boston Corporation.......................
Deutsche Bank Securities Inc.................................
Total............. ===============
-43-
SCHEDULE II
List of 128F(9) Associates of the Issuer Trustee
[Perpetual to provide]
-44-
SCHEDULE III
List of 128F(9) Associates of the CBA Parties
[CBA to provide]
-45-
EXHIBIT A
Form of Xxxxx Xxxxx Opinions
[To be replaced by draft Xxxxx Xxxxx opinions as and when agreed]
(Insert customary qualifications, exceptions and assumptions)
1. to the extent that execution and delivery of the Underwriting Agreement and
any Basic Document is a matter governed by the laws of the State of New York:
the Underwriting Agreement and each such Basic Document has been duly executed
and delivered by each of the CBA Parties and the Issuer Trustee and each such
Basic Document constitutes a valid and binding obligation of the Issuer Trustee
and each CBA Party which is party to that Basic Document and is enforceable
against each of the CBA Parties and the Issuer Trustee in accordance with its
terms, subject as to enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or other similar laws
affecting the enforcement of creditors rights generally and to general equitable
principles; and the Note Trust Deed has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act");
2. no consent, approval, authorization, order, license, registration or
qualification of or with any court or governmental agency or body is required
for the issue and sale of the Class A-1 Notes, the performance by each CBA Party
and the Issuer Trustee of its obligations under this Agreements and the Basic
Document or the consummation of the other transactions contemplated by this
Agreement or the Basic Documents, except (a) such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as have been
obtained under the Securities Act of 1933, as amended (the "Securities Act") and
the Trust Indenture Act (as to which we express our opinion in paragraph 1) and
(b) as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Class A-1 Notes by the Underwriters;
3. the statements in the Prospectus under "Risk Factors, "Description of the
Trust," "Description of the Transaction Documents", "Legal Aspects of the
Housing Loans" and "Description of Class A-1 Notes," insofar as such statements
constitute a summary of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such legal
matters, documents or proceedings; the statements in the Registration Statement
and the Prospectus under the headings "United States Federal Income Tax Matters"
and "ERISA Consider-
-46-
ations," "Legal Investment Considerations", to the extent they constitute
descriptions of matters of law or legal conclusions with respect thereto, have
been prepared or reviewed by such counsel and are correct in all material
respects;
4. the Registration Statement has become effective under the Securities Act and,
to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Securities
Act and no proceedings for that purpose have been instituted or threatened by
the Commission; such counsel is of the opinion that the Registration Statement
and the Prospectus and any amendments and supplements thereto (other than any
accounting, statistical or financial data included therein, as to which such
counsel need express no opinion) comply as to form in all material respects with
the requirements of the Securities Act and the Trust Indenture Act; and such
counsel believes that (other than the accounting, statistical or financial data
included therein, as to which such counsel need express no belief and other than
that part of the Registration Statement which constitutes the Form T-1 of the
Trustee under the Trust Indenture Act) the Registration Statement and the
Prospectus at the time the Registration Statement became effective did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and that the Prospectus, as amended or supplemented, if applicable,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
5. to the best of our knowledge, there are no material contracts, indentures or
other documents of a character required to be described or referred to in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement other than those referred to or described in the
Prospectus;
6. the offer, sale and delivery of the A$ Securities to the Dealers and the
initial resale of the A$ Securities by the Dealers contemplated by the Dealer
Agreement and the offer, sale, delivery and initial resale of any Redraw Bonds
(as defined in the Basic Documents) that are issued as contemplated by the Basic
Documents do not require registration under the Securities Act, it being
understood that we do not express any opinions as to any subsequent resale of
any A$ Security;
7. each of the CBA Parties and the Issuer Trustee has legally, validly and
irrevocably submitted to the non-exclusive jurisdiction of any Federal or State
court in the City, County and State of New York, United States of America in
respect of any suit arising out of or relating to the Underwriting Agreement and
has legally, validly and irrevocably appointed CT Corporation System as the
authorized agent of
-47-
each of the CBA Parties and Issuer Trustee for the purpose described in Section
of the Underwriting Agreement;
_
8. the Trust is not, and if each party to the Basic Documents performs its
obligations under the Basic Documents and consummates the transactions
contemplated by the Basic Documents, the Trust will not be an "investment
company" required to be regulated under the Investment Company Act of 1940, as
amended.
-48-
EXHIBIT B
Form of Xxxxxxx Xxx Opinion
[To be replaced by draft Xxxxxxx Xxx opinions as and when agreed]
(Insert customary assumptions, qualifications and exceptions)
1. Each of CBA and the Manager have been duly incorporated and is validly
existing under the laws of the Australian Capital Territory and New South Wales,
respectively, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
2. each of the CBA Parties is capable of suing and being sued in its
corporate name;
3. each of the CBA Parties has:
(a) the corporate power to enter into and perform its
obligations under the Underwriting Agreement and each of
the Basic Documents to which it is a party and the Powers
of Attorney;
(b) taken all corporate action to authorize the execution
and delivery of, and the performance of its
obligations under, the Underwriting Agreement and
each Basic Document to which it is a party; and
(c) duly authorized, executed and delivered the Underwriting
Agreement and each Basic Document to which it is a party.
4. (a) the obligations of each CBA Party in each Basic Document
to which it is a party constitute its legal, valid and
binding obligations enforceable in competent courts of
the relevant jurisdictions.
(b) upon issue in accordance with the Master Trust Deed
and the Series Supplement, the Notes will constitute
legal, valid and binding obligations of the Issuer
Trustee, entitling the holder to the benefits
provided by the Security Trust Deed, and in the
-49-
case of the Class A-1 Notes, the Note Trust Deed in
each case enforceable in competent courts of the
relevant jurisdictions.
(c) clause 13.1 of the Security Trust Deed, which provides
the order of application of payments, is valid and
enforceable and
(d) clause 7 of the Master Trust Deed will operate to
stop an Noteholder from seeking to wind up the
Trustee.
5. all authorizations under the laws of each relevant jurisdiction now
obtainable and required by either CBA Party in connection with the execution,
delivery, performance, validity or enforceability of the Underwriting Agreement
and the Basic Documents and to make the Underwriting Agreement and Basic
Documents admissible as evidence have been obtained or effected and are in full
force and effect. No Authorization under the laws of the relevant jurisdictions
is required for the issue or distribution of the Prospectus in the United States
of America and the United Kingdom;
6. no stamp or registration or similar taxes or charges are payable under the
laws of any relevant jurisdiction in connection with the execution, delivery,
performance and enforcement any of the Underwriting Agreement and the Basic
Documents other than nominal duty, financial institutions duty and debits tax;
7. it is not necessary under the laws of any relevant jurisdiction to file,
register or record the Underwriting Agreement or the Basic Documents, except
that it is necessary to register the Security Trust Deed under the Powers of
Attorney. We confirm that the Security Trust Deed was lodged for registration no
later than 45 days after the date it was executed;
8. CBA has full power and authority to sell and assign the Mortgage Loan Rights
to the Issuer Trustee as trustee of the Trust pursuant to the Series Supplement
and has duly authorized such sale and assignment to the Issuer Trustee as part
of the Trust by all necessary corporate action;
9. following completion of the procedures in the Sale Notice for the transfer of
Mortgage Loan Rights from CBA to the Issuer Trustee (including, without
limitation payment of the purchase price by the Trustee to CBA) (i) CBA will
transfer title in the Mortgage Loan Rights to the Trust, subject to no prior
lien, mortgage, security interest, pledge, adverse claim, change or encumbrance
and (ii) those Mortgage Loan Rights would not be considered assets of CBA in the
event CBA is wound up;
-50-
10. our searches have disclosed no registered Security Interest created by any
CBA Party that affects the Mortgage Loan Rights.
11. having regard only to the terms of the Basic Documents, we do not believe
that the Issuer Trustee or the Noteholders will be on notice that any of the
transactions contemplated by or effected, or to be effected, under the Basic
Documents are uncommercial transactions within the meaning of Section 588FB(1)
of the Corporations Law;
12. if an administrator is appointed in respect of the Issuer Trustee under Part
5.3A of the Corporations Law, the moratorium on disposal of the Issuer Trustee's
assets and enforcement of securities over the Issuer Trustee's assets will not
affect those assets held by the Issuer Trustee as trustee of the Trust;
13. there are no provisions of the Corporations Law under which payments made
by any CBA Party under and in accordance with the Basic Documents might be set
aside other than [specify any applicable exceptions];
14. we believe that it is unlikely that a liquidator of the Issuer Trustee would
characterize the Mortgage Loan Rights as satisfying any of the descriptions set
out in Division 7A of Part 5.6 of the Corporations Law or would wish to disclaim
such an asset. If, however, the liquidator sought to disclaim any of these
assets that would not affect the continued existence of that asset as security
for the Security Trustee and Mortgagees under the Security Trust Deed, it would
merely release the Issuer Trustee from any liabilities it owed as holders of the
relevant assets;
15. without limiting the above, each of the Powers of Attorney: (a) has been
granted by CBA in accordance with its constituent documents; (b) validly
empowers each attorney referred to in it to execute Transfers of Mortgage Loan
Rights in accordance with its terms; (c) is irrevocable; and (d) is enforceable
against CBA notwithstanding an insolvency, liquidation or receivership (but not
administration) of CBA;
16. other than the documents authorized to be executed pursuant to the Powers of
Attorney, there are no other documents that may need to be executed, or things
which may need to be done, at any time following the occurrence of a [Title
Perfection Event] by or on behalf of CBA, which the Issuer Trustee cannot do in
its own name, in order for the Issuer Trustee to become registered in all
relevant jurisdictions as the mortgagee or equivalent of the purchased Security
Interests;
-51-
17. the Security Trust Deed is registrable under the Corporations Law and
constitutes a valid security having a first ranking priority over any other
secured or unsecured obligations of the Issuer Trustee (including in an
insolvency of the Issuer Trustee), subject only to the Prior Interest;
18. the charge created by the Security Trust Deed is a floating charge over the
Charged Property (as defined in the Security Trust Deed);
19. if the Issuer Trustee is wound up and the Security Trust Deed is enforced,
any proceeds realized from the Charged Property (as defined in the Security
Trust Deed) will be required to be applied in the order set out in clause 13 of
the Security Trust Deed (subject to the possibility that in certain
circumstances the costs and expenses of the winding up may be charged against
the Charged Property). Subject to the qualifications in this opinion, the
secured creditors of the Issuer Trustee will be paid in priority to the
unsecured creditors of the Issuer Trustee;
20. if the Security Trustee is wound up, the Charged Property (as defined in the
Security Trust Deed) will not be available to its creditors, other than
creditors to whom debts were incurred by the Security Trustee acting in its
capacity as such and in accordance with the provisions of the Security Trust
Deed;
21. if at the time that the Issuer Trustee executes the Security Trust Deed,
none of the Secured Creditors (as defined in the Security Trust Deed) are
creditors of the Issuer Trustee, then the creation of the charge under the
Security Trust Deed will not be an unfair preference for the purposes of Section
588FA of the Corporations Law. As the Class A-1 Noteholders will be Secured
Creditors under the Security Trust Deed, it follows that the payments made by
the Issuer Trustee or the Security Trustee to the Class A-1 Noteholders will not
be unfair preferences for the purposes of Section 588FA of the Corporations Law;
22. we are not aware of any facts that would cause a court to determine that the
issue of the Class A-1 Notes constitutes an unfair loan under Section 588FD of
the Corporations Law;
23. if a liquidator is appointed in relation to the Issuer Trustee, neither the
liquidator nor any creditor claiming under that liquidation would be able to
contest successfully or avoid or have set aside: (a) the entry into the Basic
Documents by the Issuer Trustee; (b) the acquisition by the Issuer Trustee of
the Mortgage Loan Rights the subject of the Security Trust Deed; or (c) the
Charge created under the Security Trust Deed. The Charged Property (as defined
in the Security Trust Deed) would not
-52-
be consolidated with the assets of the Issuer Trustee or CBA in the event of any
insolvency, liquidation, receivership or administration of the Issuer Trustee or
CBA;
24. the Trust and the security trust established under the Security Trust Deed
are properly constituted and the Issuer Trustee and the Security Trustee have
been properly appointed;
25. those parts of the Registration Statement and the Prospectus that describe
the Basic Documents, the effect of the Basic Documents under the laws of the
relevant jurisdictions, the status of the CBA Parties, the Issuer Trust and the
Security Trustee, the information set out in the sections headed "Australian
Disclaimers", "Description of the Assets of the Trust", "Risk Factors", "Legal
Aspects of the Housing Loans", "Certain Legal Aspects of the Mortgage Loans",
Australian Tax Matters" and "Enforcement of Foreign Judgments in Australia", are
(insofar as they relate to matters of Australian law) a fair description, and an
accurate summary, of those matters to the extent that they are relevant to the
issue, sale and purchase or other transfer or disposal of, and holding of, the
Class A-1 Notes and, to the extent they constitute descriptions of matters of
law or legal conclusions with respect thereto, have been prepared or reviewed by
us and are correct in all material respects;
26. provided that the Class A-1 Notes are listed on the London Stock Exchange,
we believe that the public offer test in section 128F of the Income Tax
Assessment Act will be satisfied and, therefore, all amounts payable by the
Issuer Trustee in respect of the Class A-1 Notes may be paid free and clear of
and without deduction for or on account of any Australian tax, duty, levy,
impost, fee or charge;
27. any final and conclusive judgment of a court of the State of New York, USA,
having jurisdiction recognized by the relevant jurisdiction, in respect of an
obligation of a CBA Party under a Basic Document, which is for a fixed sum of
money, would be enforceable by action in the courts of each relevant
jurisdiction without a re-examination of the merits of the issues determined by
the proceedings in the New York court unless: (a) the proceedings in the New
York court involved a denial of the principles of natural justice; (b) the
judgment is contrary to the public policy of the relevant jurisdiction; (c) the
judgment was obtained by fraud or duress or was based on a clear mistake of
fact; (d) the judgment is a penal or revenue judgment; or (e) there has been a
prior judgment in another court between the same parties concerning the same
issues as are dealt with in the New York judgment;
28. it is not necessary for the Note Trustee, the Representative, or any
Underwriter to be licensed, qualified or otherwise entitled to carry on business
under the laws of any relevant jurisdiction in order to enforce its rights under
the Underwriting Agree-
-53-
ment or any Basic Document or by reason only of the execution, delivery and
performance of the Underwriting Agreement or any Basic
Document;
29. none of the Note Trustee, the Representative, nor any Underwriter will be
taken to be domiciled or resident in Australia for the purposes of the Income
Tax Assessment Xxx 0000 or carrying on a business in Australia solely by reason
of the execution, delivery, performance or enforcement of, or receipt of any
payment under the Underwriting Agreement or any Basic Document;
30. neither of the CBA Parties nor any of their properties or assets has any
immunity from the jurisdiction of any court or from legal process under the laws
of any relevant jurisdiction;
32. (a) Under the law of each relevant jurisdiction, the law of New
South Wales, as specified in the Basic Documents (other than
the Underwriting Agreement) will be applied to the Basic
Documents if the choice of law was made in good faith. We are
not aware that the choice of law has been made in bad faith;
(b) Under the law of each relevant jurisdiction, the law of the
State of New York will be applied to the Underwriting
Agreement and the Under writing Agreement will on execution by
each of the parties to it be enforceable in competent courts
of each relevant jurisdiction, if the choice of that law was
made in good faith, and except to the extent that:
(A) there are mandatory provisions of the law of
the relevant jurisdiction which must be
applied to the transac tion covered by;
(B) any term of or any provision of the law of
the State of New York applicable to the
Underwriting Agreement, is contrary to the
public policy of the relevant jurisdiction;
(C) the availability or enforceability of
certain rights and remedies may be governed
or affected by the procedural laws of the
relevant jurisdiction in courts of the
relevant jurisdiction; and
-54-
(D) a court may determine the another court is a
more appropriate forum; and
(c) We are not currently aware of any mandatory provisions within
the terms of sub-paragraph (b)(A) above that affect
enforceability.
-55-
EXHIBIT C
Form of Mallesons, Xxxxxxx Xxxxxx Opinion
[To be replaced by draft Mallesons opinions as and when agreed]
(Insert customary assumptions, qualifications and exceptions)
1. Each of the Issuer Trustee and the Security Trustee has been duly
incorporated and is validly existing under the laws of New South Wales as a
corporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
2. Each of the Issuer Trustee and the Security Trustee is capable of
suing and being sued in its corporate name.
3. Each of the Issuer Trustee and the Security Trustee has:
(a) the corporate power to enter into and perform its
obligations under each of the Basic Documents to which it is a party and, in the
case of the Issuer Trustee, the Underwriting Agreement;
(b) taken all corporate action to authorize the
execution and delivery of, and the performance of its obligations under, each
Basic Document to which it is a party (including, in the case of the Issuer
Trustee, the Underwriting Agreement and the issue and sale of the Class A-1
Notes); and
(c) duly executed and delivered each Basic Document to
which it is a party and, in the case of the Issuer Trustee, the Underwriting
Agreement.
4. (a) the obligations of each of the Issuer Trustee and
the Security Trustee in each Basic Document to which
it is a party and in the case of the Issuer Trustee,
the Underwriting Agreement, constitutes its legal,
valid and binding obligations enforceable in
competent courts of the relevant jurisdictions.
(b) upon issue (and, in the case of any
Registered Note, entry in the Register) in
accordance with the Master Trust Deed and
the Series Supplement, the Class A-1
-56-
Notes will constitute legal, valid and binding
obligations of the Issuer Trustee, entitling the
holder to the benefits provided by the Note Trust
Deed and the Security Trust Deed, in each case
enforceable in competent courts of the relevant
jurisdictions.
5. All Authorizations under the laws of any relevant jurisdiction now
obtainable and required by either of the Issuer Trustee or the Security Trustee
in connection with the execution, delivery, performance, validity or
enforceability of the Basic Documents and the Underwriting Agreement and to make
the Basic Documents the Underwriting Agreement admissible as evidence have been
obtained or effected and are in full force and effect. No Authorization under
the laws of the relevant jurisdictions is required for the issue or distribution
of the Prospectus in the United States of America and the United Kingdom.
6. Neither of the Issuer Trustee and the Security Trustee is, nor with
the giving of notice or lapse of time or both would either be, in violation of
or in default under its constitution or any note trust deed, mortgage, deed of
trust, loan agreement or other agreement or instrument known to us to which the
it is a party or by which it or any of its properties is bound, except for
violations and defaults which individually and in the aggregate are not material
to that party or to any holder of Class A-1 Notes.
7. The issue and sale of the Class A-1 Notes and the execution,
delivery and performance by the Issuer Trustee of the Class A-1 Notes, the
Underwriting Agreement and the Basic Documents and the consummation of the
transactions therein contemplated will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, any note
trust deed, mortgage, deed of trust, loan agreement or other agreement or
instrument known to us to which the Issuer Trustee is a party or by which the
Issuer Trustee is bound or to which any of the property or assets of the Issuer
is subject, nor will any such action result in any violation of the provisions
of the constitution of the Issuer Trustee, the Master Trust Deed, or any
applicable law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Issuer Trustee, or any
of its properties;
8. Each of the Issuer Trustee and the Security Trustee owns, possesses
or has obtained all licenses, permits, certificates, consents, orders, approvals
and other authorizations from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to own or lease, as the case may be,
and to operate its properties and to
-57-
carry on its business as conducted as of the date hereof, and neither the Issuer
Trustee nor the Security Trustee has received any actual notice of any
proceeding relating to revocation or modification of any such license, permit,
certificate, consent, order, approval or other authorization, except as
described in the Registration Statement and the Prospectus; and each of the
Issuer Trustee and the Security Trustee is in compliance with all laws and
regulations relating to the conduct of its business as conducted as of the date
of the Prospectus;
9. The Issuer Trustee has full power and authority to purchase the
Mortgage Loan Rights from CBA as part of the Trust pursuant to the Series
Supplement and has duly authorized such purchase from CBA as part of the Trust
by all necessary corporate action;
10. Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to the best of our knowledge, threatened in any relevant
jurisdiction against or affecting either the Issuer Trustee or the Security
Trustee or any property of the Issuer Trustee or the Security Trustee, or to
which either the Issuer Trustee or Security Trustee is or may be a party or to
which any property of the Issuer Trustee or the Security Trustee is or may be
the subject (i) asserting the invalidity of any of the Basic Documents to which
it is a party or, in the case of the Issuer Trustee, the Underwriting Agreement,
(ii) seeking to prevent the issuance of the Class A-1 Notes or the consummation
of any of the transactions contemplated by any of the Basic Documents to which
it is a party or, in the case of the Issuer Trustee, the Underwriting Agreement,
(iii) that may adversely affect the relevant jurisdiction federal or state
income, excise, franchise or similar tax attributes of the Class A-1 Notes, (iv)
that could materially and adversely affect the obligation of the Issuer Trustee
or the Security Trustee under any of the Basic Documents to which it is a party
or, in the case of the Issuer Trustee, the Underwriting Agreement or (v) which,
if determined adversely to that party, could individually or in the aggregate
reasonably be expected to have a material adverse effect on the general affairs,
business, prospects, management, financial position, stockholders' equity or
results of operations of that party and its subsidiaries taken as a whole or
that would reasonably be expected to materially adversely affect the interests
of the holders of the Class A-1 Notes;
11. the Trust, and the Security Trust established under the Security
Trust Deed, are properly constituted and the Issuer Trustee and the Security
Trustee have been properly appointed;
12. any final and conclusive judgment of a court of the State of New
York, USA, having jurisdiction recognized by the relevant jurisdiction, in
respect of an
-58-
obligation of the Issuer Trustee or the Security Trustee under the Underwriting
Agreement or under a Basic Document, which is for a fixed sum of money, would be
enforceable by action in the courts of each relevant jurisdiction without a
re-examination of the merits of the issues determined by the proceedings in the
New York court unless: (a) the proceedings in the New York court involved a
denial of the principles of natural justice; (b) the judgment is contrary to the
public policy of the relevant jurisdiction; (c) the judgment was obtained by
fraud or duress or was based on a clear mistake of fact; (d) the judgment is a
penal or revenue judgment; or (e) there has been a prior judgment in another
court between the same parties concerning the same issues as are dealt with in
the New York judgment;
13. neither the Issuer Trustee, nor the Security Trustee, nor any
of their properties or assets has any immunity from the jurisdiction of any
court or from legal process under the laws of any relevant jurisdiction;
14. (a) under the law of each relevant jurisdiction, the law
of New South Wales, as specified in the Basic
Documents (other than the Underwriting Agreement,
will be applied to the Basic Documents if the choice
of law was made in good faith. We are not aware that
the choice of law has been made in bad faith;
(b) under the law of each relevant jurisdiction, the law
of the State of New York will be applied to the
Underwriting Agreement and the Underwriting Agreement
will on execution by each of the parties to it be
enforceable in competent courts of each relevant
jurisdiction, if the choice of that law was made in
good faith, and except to the extent that:
(A) there are mandatory provisions of the law of
the relevant jurisdiction which must be
applied to the transaction covered by;
(B) any term of or any provision of the law of
the State of New York applicable to the
Underwriting Agreement, is contrary to the
public policy of the relevant jurisdiction;
(C) the availability or enforceability of
certain rights and remedies may be governed
or affected by the procedural laws of the
relevant jurisdiction in courts of the
relevant jurisdiction; and
-59-
(D) a court may determine the another court is a
more appropriate forum.
(c) We are not currently aware of any mandatory
provisions within the terms of sub-paragraph (b)(A)
above that affect enforceability.
-60-
EXHIBIT D
Form of CBA Inhouse Counsel's Opinion
[To be replaced by draft opinion as and when agreed]
(Insert customary assumptions, qualifications and exceptions)
1. neither of the CBA Parties is, nor with the giving of notice or lapse of time
or both would either be, in violation of or in default under its constitution or
any note trust deed, mortgage, deed of trust, loan agreement or other agreement
or instrument known to me to which the CBA Party is a party or by which it or
any of its properties is bound, except for violations and defaults which
individually and in the aggregate are not materially adverse to the CBA Parties
taken as a whole or the consummation of any of the transactions contemplated by
the Underwriting Agreement, or any Basic Document;
2. the issue and sale of the Class A-1 Notes and the execution, delivery and
performance by the CBA Parties of their respective obligations under the Basic
Documents and the Underwriting Agreement and the consummation of the
transactions contemplated in Basic Documents and the Underwriting Agreement will
not conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any note trust deed, mortgage, deed of trust, loan
agreement or other agreement or instrument known to me to which a CBA Party is a
party or by which the CBA Party is bound or to which any of the property or
assets of a CBA Party is subject, nor will any such action result in any
violation of the provisions of (i) the constitution of a CBA Party or (ii) any
applicable law or statute applicable to a CBSA party in Australia or any
existing order, rule or regulation of any court or governmental agency or body
in Australia having jurisdiction over a CBA Party, or any of its properties in
any federal or state jurisdiction of the Commonwealth of Australia;
3. other than as set forth or contemplated in the Prospectus, there are no legal
or governmental investigations, actions, suits or proceedings pending or, to the
best of my knowledge, threatened in any federal or state jurisdiction of the
Commonwealth of Australia against or involving any CBA Party or any property of
a CBA Party, or to which any CBA Party is or may be a party or to which any
property of a CBA Party is or may be the subject: (i) asserting the invalidity
of the Underwriting Agreement or of any of the Basic Documents, (ii) seeking to
prevent the issuance of the Class A-1 Notes or the consummation of any of the
transactions contemplated by the Underwriting Agreement or any of the Basic
Documents, (iii) that may adversely affect the federal or state income, excise,
franchise or similar tax attributes of the
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Class A-1 Notes, (iv) that could materially and adversely affect a CBA Party's
obligations under the Underwriting Agreement or any of the Basic Documents or
(v) which, if determined adversely to a CBA Party, could individually or in the
aggregate reasonably be expected to have a material adverse effect on the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of CBA and its subsidiaries taken
as a whole or that would reasonably be expected materially to adversely affect
the consummation of any of the transactions contemplated by the Underwriting
Agreement or any Basic Document.
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